Copyright its expression stupid!

It is a cliché of copyright law that copyright does not protect ideas: it protects the expression of ideas. But the utility of the cliché depends on how ideas are defined.


The international treaties include the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), article 9 (2) of which provides:

“Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.”

But what about computer software? In the UK, the Software Directive was implemented in the UK by the Copyright (Computer Programs) Regulations 1992 (SI 1992/3233) which amended the Copyright, Designs and Patents Act 1988 (CDPA) to provide that computer programs and the preparatory design material for a computer program are protected as separate categories of literary works under the CDPA (sections 3(1)(b) and (c), CDPA).

A copyright owner has the exclusive right to copy his work (section 16(1)(a), CDPA). Copying means reproducing the work in any material form, including the storage of the work in any medium by electronic means (section 17(2), CDPA). Article 1(2) is not reflected in the CDPA.

However, and TRIPS reinforces this: it is a basic principle of UK law that copyright seeks to protect the form of expression of ideas, and not the ideas as such. So the Software Directive contains the following recitals (numbered as in the judge’s first judgment):

“Whereas, for the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive

Whereas, in accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive

Whereas, in accordance with the legislation and jurisprudence of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright”



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